Pennsylvania S. Ct. Finds Pattern of "Lack of Candor" in Philadelphia D.A. Krasner's Filings Urging Reversal of Murder Convictions

From yesterday's decision in Commonwealth v. Brown , written by Justice Kevin Dougherty, joined by Justices Sallie Updyke Mundy, Kevin Brobson, and Daniel McCaffery; all the opinions put together come to 70K words, so all I include are short excerpts:

The prosecutor does not decide whether a defendant is entitled to relief under the Post Conviction Relief Act (PCRA). This is the exclusive province of the PCRA court.

Nonetheless, while not dispositive, a prosecutor's concession of relief is undoubtedly influential. Courts have long been instructed to give such concessions "great weight[.]"

But when the prosecutor sides with a defendant, there generally is no adversarial testing of the defendant's entitlement to relief, and the court is left without the benefits of opposing advocacy, including the presentation of counterarguments and exposure of misrepresentations of fact and law. The PCRA court's review is limited to the record before it. If relevant evidence is withheld from the court, this pertinent information goes unconsidered. The court is not permitted to conduct its own independent investigation of extra-record materials, and it is not equipped to do so in any case. For these reasons, an unreliable prosecutorial concession substantially risks the erroneous grant of relief by the court.

This is not to say a prosecutor should never concede relief. A prosecutor bears the responsibility of a minister of justice and not simply that of an advocate. Hence, a prosecutor is duty-bound to confess error, provided the facts and law call for it.

But the proviso is critical. When relief is not dictated by the record and law but merely advocated for personal, political, ideological, policy, or other non-legal reasons, a prosecutor's concession does not minister justice; it facilitates injustice.

Here, in this case reviewed under our King's Bench jurisdiction, the Philadelphia District Attorney's Office (DAO), on behalf of the Commonwealth, conceded that Lavar Brown (Brown), a convicted murderer sentenced to death for a separate murder, was entitled to a new trial based upon a facially untimely claim under the PCRA.

Upon careful review, we conclude this concession was not reliable. More specifically, we find the DAO conceded relief although none was warranted based on the existing record, violated its duty of candor to the PCRA court, withheld material evidence from the court, opposed efforts by amici to gain access to this evidence, submitted a false stipulation of fact, misstated facts in its pleadings, failed to conduct a reasonable investigation, and opposed a required evidentiary hearing. The predictable result was the erroneous grant of a new trial.

These circumstances, troubling as they are, would not warrant a remedy beyond reversal of the PCRA court's order in this particular case if they were confined to this one case. Unfortunately, they aren't. Since 2018, the DAO has conceded relief well over 100 times, mostly in murder cases like this one. There have been numerous instances of untrustworthy concessions, lack of candor, misrepresentations of fact, lack of adequate investigation, and avoidance of hearings. And the problems are poised to continue. There are apparently more than 1,000 cases yet to be reviewed by the DAO's Conviction Integrity Unit (CIU), and the DAO vigorously defends its checkered concession program as a necessary corrective to past misdeeds by prior administrations.

The DAO's active, ongoing, and problematic concession program requires broader remedial action to promote just outcomes. {Under our state constitution, this Court has "the power to prescribe general rules governing practice, procedure and the conduct of all courts … if such rules are consistent with th[e c]onstitution and neither abridge, enlarge nor modify the substantive rights of any litigant[.]"} Accordingly, in addition to reversing the PCRA court's grant of a new trial here, we also hold that in any PCRA case in which the DAO concedes relief, the PCRA court shall grant the Office of Attorney General (OAG) notice and the right to intervene in the case before ruling on the concession. Regardless of the OAG's position on the concession if it chooses to intervene — it may well agree relief is warranted — its independent assessment and participation will enhance the reliability of the proceedings and the PCRA court's ultimate decision…. Our holding applies only in Philadelphia County, but that is because that is where the problem is….

A brief excerpt from Justice Brobson's concurrence , joined by Justice Mundy (both fully joined the majority opinion as well):

[W]hat happens if the prosecutor acts in a way that calls into question the reliability of the PCRA proceeding itself? What happens if the prosecutor concedes error where none exists? Even worse, what happens if the prosecutor withholds record evidence that contradicts the prosecutor's concession, causing a PCRA court to upend a lawful verdict against the inte…